Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Analysis: How many ways to lose a case?

Posted Mon, February 23rd, 2009 4:10 pm by Lyle Denniston

Analysis

By the time Justice Anthony M. Kennedy asked a government lawyer which of several ways he would prefer the Supreme Court would use to hand him victory, it was plain that Michael Rivera’s chances had all but vanished. But, in fact, the oral argument Monday in Rivera v. Illinois (07-9995) had only been underway less than a minute when doubt arose as to why the Court had agreed to hear his appeal, and deeper doubt set in over how he could ever prevail.

Rivera, serving an 85-year prison sentence for murdering a Chicago youth he mistakenly thought was a member of a rival street gang, sought the Court’s help because a juror his lawyer thought might be biased was put on the jury — despite the lawyer’s supposedly peremptory challenge. But the lawyer speaking for him on Monday — James K. Leven of Chicago — had uttered only four sentences, and a part of a fifth, before Justice Ruth Bader Ginsburg and other Justices whose votes Rivera surely would need laid down a barrage of hostile questions.

The thrust of the questions by Ginsburg and Justices David H. Souter and Stephen G. Breyer was that Leven was trying to constitutionalize a mere violation of state law on trial procedure — and, to make matters worse, was doing so when there may not have been a violation at all. Leven’s whole case was premised on the argument that a wrongly seated jury makes the entire jury “an unlawful adjudicator,” but Ginsburg immediately ridiculed the idea, calling it “quite a stretch.”

Souter promptly made the point that the Justices rely on state courts to interpret state law, and noted that the Illinois Supreme Court had denied there was such a violation. When Breyer soon joined in, his complaint was about the slippery slope he thought Leven was approaching. “There could be a thousand reasons why under state law a particular jury is improperly constituted,” Breyer noted. So, he went on, was Leven trying to make a constitutional issue out of every one of them?

Even before Leven could answer, Justice Kennedy moved in to put heavier emphasis on Breyer’s question, and, when Leven tried to answer that query, Kennedy accused him of “avoiding the question.” Then, accusingly, Kennedy said: “What you are giving us is a sweeping proposition, A, for the constitutional principles that you are setting forth; B, for the supervision and intrusion it would cause federaql courts on the state system.”

There was nothing, from then on, for Leven to do but soldier onward, making his same points amid unrelenting waves of skeptical or even hostile questions from the Court’s moderate-to-liberal members, along with Justice Kennedy.

Justice Ginsburg even questioned Leven’s interpretation of the facts in the case regarding the possible bias of the wrongfully seated juror, and Justice Souter aggressively disputed each point of Leven’s interpretation of the Illinois Supreme Court decision against his client.

Chief Justice John G. Roberts, Jr., began a question to Leven that sounded as if it might be helpful to Rivera, but, by the time Roberts finished the thought, it was not helpful at all. The Chief Justice commented that, once a juror was wrongly suited, it would be impossible to show the harmfulness of that error. That, of course, is an underlying point in Rivera’s case — because a wrongly composed jury cannot be undone or its alternative analyzed, harmlessness cannot be shown, so the conviction should always be overturned. But the Chief Justice finished his question by saying that he was only talking about a minor error in juror seating, like inelibility to serve because of residence.

Illinois’ solicitor general, Michael A. Scodro, had a much easier time of it at the lectern. He had to deal, to be sure, with some nettlesome questions — especially from Justice Antonin Scalia — about whether the Court had jurisdiction to review the state Supreme Court’s reading of federal harmless error doctrine. (The state’s argument does question whether the Court had jurisdiction to hear this case at all, contending that the state court had relied only on state law grounds.) Even so, Scalia’s questions did not appear to be supportive of Rivera’s underlying challenge.

Justice John Paul Stevens, another whose vote Rivera would seem absolutely to need, suggested that, indeed, the Justices might not have jurisdiction and a decision that came out of the case might be no more than “an advisory opinion” — something the Court does not give.

When the argument reached the point that Scodro yielded the final 10 minutes of time to a federal lawyer, Matthew D. Roberts, an assistant to the U.S. Solicitor General, it was not at all clear that the Court needed to hear more against Rivera’s position. The lawyer faced few probing questions, although the Chief Justice, now joined by Justice Ginsburg, again wondered how to judge harmlessness, or not, when a trial had gone ahead with a wrongly seated juror. “There is no way to tell” after the fact whether that seating made a difference, the Chief Justice remarked.

As the assistant to the Solicitor was about to sit down, Kennedy asked the portentous question. “There are any number of alternatives that we can adopt in ruling for your position. If we were to rule for your position, what do you think is the most straightforward rationale?” He gave a satisfactory answer but, the argument having gone as it did, any that he gave would have seemed more than sufficient.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]